Lord Menzies

Pursuers and Respondents: Murphy QC, McBrearty; Brodies LLP

Defenders and Reclaimers: Geoff Clarke QC, B Smith; DAC Beachcroft Scotland LLP

(for Charles Hennessy & Co, Solicitors, Glasgow)

8 May 2013

Introduction
[1] The pursuers and respondents are a company incorporated under the Companies Acts, which at all relevant dates have been the proprietors of ground floor and basement premises at 225/235 North Street, Glasgow where they carry on business as restaurateurs, trading as the Koh I Noor. In this action, raised in 2001, they sue in respect of physical damage to their premises caused by a partial collapse of neighbouring premises at 237/239 North Street which collapse occurred on 6 November 1996. Originally two defenders were sued, first, Glasgow City Council, and, second, CMI (Contractors) Limited ("CMI"), a demolition company. However, on 21 December 2005 CMI were assoilzied of consent and the case proceeded to proof only as against the first defenders, Glasgow City Council.

[2] The pursuers' case against the first defenders is one of negligence at common law in the planning and carrying out of the demolition of the first, second and third storeys of the then tenement building of which the pursuers' premises formed the ground floor and basement. The demolition operations were carried out over a period of about ten weeks commencing in July 1996, under the supervision of the first defenders' Director of Building Control. They were consequential upon the service by the first defenders of notices under section 13 of the Building (Scotland) Act 1959, as amended.

[3] Following proof, the Temporary Lord Ordinary found that the first defenders had failed in their common law duties of care towards the pursuers. In terms of an interlocutor dated 18 October 2011, having repelled a plea of prescription she granted decree against the first defenders in respect of an agreed sum of damages. The first defenders have reclaimed.

Building (Scotland) Act 1959 section 13
[4] In serving notices and carrying out operations the first defenders were acting under powers conferred by section 13 of the Building (Scotland) Act 1959, as amended by the Local Government (Scotland) Act 1973 and now repealed. Section 13 provided, inter alia:

"13 Action to be taken in respect of buildings found to be dangerous.

(1) If it appears to the local authority that any building is dangerous to persons inhabiting or frequenting it or adjacent buildings or places or to the public generally they shall forthwith-

(a) require any occupants of the building in question, and of any adjacent building, being persons whom they consider to be endangered by the state of the building in question, to remove immediately from those buildings;

(b) cause to be executed such operations (including, if necessary, demolition operations) as in their opinion are necessary for preventing access to the building and any adjacent parts of any road or public place which appear to them to be dangerous by reason of the state of the building and otherwise for the protection of the public and of persons and property on the land adjacent to the building; and

(c) serve on the owner of the building a notice requiring him within a period of seven days from the service of the notice to begin, and within such further period as may be specified in the notice, being a period of not less than twenty-one days from the expiration of the first mentioned period, to complete to the satisfaction of the local authority, such operations for the repair, securing or demolition of the building as may be so specified, being operations necessary in the opinion of the local authority to remove the danger.

(2) If on the expiration of the period of seven days referred to in paragraph (c) of the foregoing subsection the owner of the building has not begun, or if on the expiration of the period of not less than twenty-one days so referred to he has not completed, the operations required by a notice given under that paragraph the local authority, after giving the owner and any other person appearing to them to have an interest an opportunity to be heard, may make an order requiring the owner to execute the said operations within such period as shall be stated in the order.;

...

(4) If an order under subsection (2) above is not duly complied with, the local authority may execute the operations which the owner has failed to execute or demolish the building.

(5) Any expenses incurred by a local authority in executing their functions under this section in respect of any building, shall, subject to the provisions of section seventeen of this Act, be recoverable by the local authority from the owner of the building as a debt; ..."

The relevant operations
[5] As at 17 August 1994 the pursuers' premises formed part of a traditional four storey tenement block, constructed in about 1900, and situated on the west side of North Street, Glasgow. The title to the tenement block indicated that it comprised numbers 225 to 239 North Street. The façade of the pursuers' restaurant ran (south to north) at ground floor level from numbers 225 to 237 North Street. The first, second and third storeys above the pursuers' premises were divided into flatted accommodation. There were twelve flats, title to which was held by an Isle of Man company, Greenford Properties Limited. The first, second and third storeys were in a state of disrepair.

[6] By notice in terms of section 13 of the 1959 Act dated 17 August 1994 and served on Greenford Properties and Mr Rusal Tahir, as owners of the building at 229, 235 and 236 North Street, Glasgow, the first defenders stated that it appeared to them that the building was dangerous and required the owners to carry out certain building operations or alternatively to demolish the building to the upper surface of the first floor joists. A similar notice, dated 1 September 1994, was served on Greenford Properties and Mr Rusal Tahir in respect of 229, 235 and 236 North Street, as was a further similar notice dated 7 September 1994 in respect of 229 and 235 North Street. As the persons identified by the first defenders in these notices as the owners of the building had not begun the specified building operations the first defenders served a notice dated 28 September 1994 of their intention to make an order in terms of section 13(2) of the 1959 Act.

[7] Having ascertained the proper designations of the owners of the building at 229 and 235 North Street, the first defenders served a further notice in terms of section 13 in respect of that building on Greenford Properties Limited and the pursuers. That further notice was dated 25 January 1995 and required the owners to carry out certain building operations or alternatively to demolish the building to the upper surface of the first floor joists. The owners not having carried out these operations, the first defenders served a notice dated 8 September 1995 on Greenford Properties Limited and the pursuers in terms of section 13(2) of the 1959 Act. Neither Greenford Properties Limited nor the pursuers carried out the operations specified in the notice of 8 September 1995. Accordingly, as is a matter of admission in the pleadings, by virtue of section 13 (4) of the 1959 Act the first defenders were authorised and entitled to demolish that part of the tenement building at 229 and 235 North Street above the pursuers' premises.

[8] On 19 June 1996 the first defenders contracted with CMI for the carrying out of the demolition of the first, second and third storeys of the part of the tenement building at 229 and 235 North Street above the pursuers' premises. The contract appointed the first defenders' Director of Building Control as chief supervising officer for the works. CMI carried out these works in July 1996 and subsequently. As it is put by the first defenders in the note of argument they lodged prior to the hearing of the reclaiming motion and repeated in the written submissions by junior counsel which were provided to the court, the effect of this demolition operation, once completed, was twofold: (i) to remove the tenement flats that had previously been above the pursuers' restaurant premises, above which a new roof was to be built, and (ii) to expose what had formerly been an internal division wall which consequently became the outer gable wall of that part of the building constituted by the tenemental flats at 237 to 239 North Street. The division wall contained chimney flues and was topped by coping stones and a chimney head.

The collapse and consequent damage
[9] On 6 November 1996 in adverse weather conditions including high winds, a portion of brickwork forming part of the former internal mutual division and chimney flues in that wall was blown down. The brickwork collapsed through the roof of the pursuers' premises causing the damage in respect of which the pursuers sue and which has been quantified at an agreed sum.

[10] The reason for the collapse was the action of wind forces on a wall which the Temporary Lord Ordinary found lacked stability following the works carried out by the first defenders. These works exposed what had been an internal mutual division wall. As was demonstrated by an inspection of the wall on 15 November 1996 by a chartered building surveyor, Andrew Lightbody, the bricks and mortar of the wall suffered from expansion, erosion and crumbling due to sulphate attack. The demolition of the first, second and third storeys of the building at 229 and 235 North Street, as well as exposing the wall to wind forces, had deprived the wall of lateral support. The wall was not tied-in to the building at 235 to 237 North Street (notwithstanding a recommendation made prior to commencement of the works by one of the first defenders' officials that this should be done). Mr Lightbody expressed the view, which the Temporary Lord Ordinary accepted, that it was most likely that the chimney head projection above the roof of 235 to 237 North Street had acted as a sail in response to wind forces and that because of the defects in the wall below there had been a collapse. In Mr Lightbody's opinion, again which was accepted by the Temporary Lord Ordinary, had works been carried out essentially of the nature recommended by the first defenders' official they would have precluded the collapse.

[11] According to a Met Office report the wind force on the night of 6 November 1996 was of a strength that could be expected every five years.

The pursuers' case of negligence and its treatment by the Lord Ordinary
[12] As appears from article 5 of condescendence, it was the pursuers' case that as a local authority authorised to demolish a building under and in terms of section 13(4) of the 1959 Act, the first defenders were under a duty of reasonable care to ensure that these demolition works were executed and completed in a manner which did not cause a danger of damage to other property such as the pursuers' premises. In particular the first defenders were under a duty to ensure that the remaining gable wall and chimney head of the demolished building and the neighbouring building were left in a state in which they were not liable to collapse. They were under a duty not to decide not to stabilise the gable wall until they had properly ascertained its state during the process of demolition. They were under a duty to inspect the condition of the wall exposed during the demolition works to see if it presented a risk of injury to other property such as the pursuers' premises. Given that they knew that the former mutual division wall was exposed, that lateral support for this wall had been removed as a consequence of the demolition work, that the only support afforded to the then gable wall consisted of the front and rear elevations of the building at 237 to 239 North Street and that the brickwork and mortar joints were eroded and crumbling, the first defenders knew or ought to have known that there was a material risk of the then gable wall or part of it collapsing or otherwise becoming detached and falling on the pursuers' premises. Accordingly, so the pursuers aver, as part of the demolition works the first defenders were under a duty of reasonable care to instruct that immediate steps be taken to protect the structural integrity of the newly exposed gable wall.

[13] At proof the Temporary Lord Ordinary heard evidence, for the pursuers, from Mr Ghulam Tahir, a director of the pursuers who had managed their business from 1983; Mr Andrew Lightbody; Mr Denis Garrity, a solicitor who spoke to the title for the tenement at 225 to 239 North Street; Mr Gordon Bathgate, a chartered engineer, who gave opinion evidence as to the likely performance of the division wall once exposed and acting as an external gable wall, the cause of the collapse and proper engineering practice; and for the defenders, from Mr William Simpson, a demolition contractor formerly of CMI, who had been project manager for the demolition works at 229 and 235 North Street and who gave evidence on the progress of the works; Mr Barry Mallon, a chartered surveyor who in 1996 was employed as a building surveyor by the first defenders; Mr Alan McCulloch, a consulting engineer; and Mr Ian Taylor, who in 1995 and 1996 had been the first defenders' Director of Building Control.

[14] No criticism was advanced by the pursuers of the decision, made by Mr Taylor, to serve the critical notice of 8 September 1995 and thereafter to demolish the upper storeys at 229 to 235 North Street. At paragraph 81 of her opinion the Temporary Lord Ordinary acknowledges that in making this decision Mr Taylor was making a judgement and that that judgment was not open to criticism. However, in her opinion, accepting what was contended for by the pursuers, in carrying out that decision the first defenders had been obliged to take reasonable care not to cause injury or damage to adjacent property, and they had failed to do so.

[15] As appears from paragraphs 82 to 88 of her opinion, in coming to these conclusions the Temporary Lord Ordinary relied on the findings that she made on the basis of the evidence that she had heard. She held that the first defenders must be taken to have been aware that the demolition works instructed by them would have the result of exposing a wall which would be unstable in the face of foreseeable structural loads, unless steps were taken to secure it. An internal mutual division wall, such as the wall dividing the building at 229 to 235 North Street from the building at 237 to 239 North Street which was exposed by the demolition works, is not built to the same standard as a wall intended to be an external gable wall. An external gable wall is built to withstand structural forces. It is fixed to the front and rear elevations of the tenement with quoins. The mutual division wall exposed by the demolition works in the present case had flues running through it to the chimney head and in that portion which had been contained within the former roof void bricks and mortar had suffered from widespread expansion, erosion and crumbling due to sulphate attack. According to the Temporary Lord Ordinary, all of the professional or expert witnesses led in evidence had accepted that the now exposed wall was, as a result of the demolition works, less stable than previously and less able to withstand wind forces.

[16] The Temporary Lord Ordinary found that in 1995 and 1996 there had been two groups within the first defender's Building Control department. The "operations" group took the decisions but it was the "contracts" group in which the building surveyors with specialist knowledge were employed. Those employed in contracts could make recommendations based on their knowledge and experience to those in operations, but they did not hold the ultimate decision making power. That power rested with operations and ultimately with Mr Taylor, as Director of Building Control and overall head of both sections. The decisions made in relation to the wall exposed by the demolition had to be examined in that context. By 17 April 1996 a timescale was being planned and the project for the demolition works at 237 to 239 North Street was proceeding to tender. On 17 April 1996 Mr Halliday of the contracts group had sent a memo to Mr Knowlson in the operations group recording concerns about the fact that an internal separating or division wall of the tenement would become an "exposed gable wall" on completion and stating that the "... integrity of this wall without stabilisation works having been carried out is in doubt". The memo went on to state that one way forward would be to approach the matter in two stages: first, minimal holding works could be carried to 229-235 North Street and then a statutory notice could be served in the proprietors of 237-239 North Street. If the proprietors of those flats did not react by carrying out repairs, then "... demolition of both properties could be secured and a 'finished' product achieved." Thus, those in the contracts group were clear from the outset that some solution had to be found to the doubtful stability of the wall that would be left exposed following demolition of 229-235 North Street and understood that they ought not to leave the site knowing that the wall was of dubious stability. In his memo of 17 April 1996 Mr Halliday recommended that the works should not proceed at all unless approval of gable stabilisation work (at a cost of about £10,000 excluding VAT) was secured. Within a week of Mr Halliday's memo and as a result of the concerns expressed by him, Mr Mallon and his colleague were instructed to carry out a disruptive survey of the division wall in order to inform Mr Taylor as to whether provision for gable stabilisation works should be authorised. Photographs were to be taken to assist the reader of the report. Mr Mallon did not carry out a disruptive survey of the chimney flues or roof space to examine the brickwork there, despite the instructions given to him, but the Temporary Lord Ordinary concluded that the responsible officers of the first defenders ought to have known that the brickwork in the apex of the roof space was in a poor condition and needed attention. In any event, notwithstanding this limitation on what the Temporary Lord Ordinary found to be an otherwise comprehensive survey, Mr Mallon recommended that there was a need for significant tying-in works, both tying back the mutual wall to the flooring of the adjacent property and providing ties where the wall met the front and rear elevations. Mr Mallon knew of the reduced ability of a wall that had never been intended to be a gable wall to withstand wind forces once exposed. After the report became available there were further discussions between the two groups within Building Control. The Temporary Lord Ordinary accepted Mr Mallon's evidence that he and his colleagues had argued, particularly at a meeting of 16 May 1996, that the tying-in works should be carried out but that they were over-ruled. There was reference to there being no authority to effect the works in the absence of notice on the proprietors of 237 - 239 North Street, but, in the opinion of the Temporary Lord Ordinary, that was hardly a good reason to ignore the findings of Mr Mallon without trying to find an alternative solution.

[17] It was left to Mr Taylor to decide what to do in the circumstances. The proposed contract included a provisional sum for tying-in. Following the meeting of 16 May 1996, Mr Taylor decided to delete the tying-in works to the exposed wall from the contract, thus reducing the contract sum by about £12,000.

[18] Mr Taylor was an important witness. On the first defenders' approach to the case in deciding not to proceed with works to tie-in the former mutual division wall to the building at 237 - 239 North Street Mr Taylor was exercising a discretion conferred on the first defenders by section 13 of the 1959 Act. On the pursuers' approach, Mr Taylor decision to go ahead with the demolition works without making provision for tying-in was negligent.

[19] The Temporary Lord Ordinary was not favourably impressed by Mr Taylor's evidence. On the central issue of why he had deleted the provision for tying-in, she described it as seeming disingenuous. She explains that he was the last witness to be called. None of the other witnesses had been able to offer a possible explanation for his decision and no specific reason was put to them by counsel for the first defenders. The Temporary Lord Ordinary records that Mr Lightbody thought Mr Taylor's decision "incomprehensible" and "folly". When Mr Taylor came to give his evidence he said that Mr Mallon's survey report on the wall was "irrelevant" to his decision, which was based solely on his lack of authority to enter the neighbouring premises. Having heard that evidence the Temporary Lord Ordinary concluded that if Mr Taylor had indeed based his decision solely on the issue of what power he had to enter the adjacent property, as he claimed to have done, that showed a total disregard for the safety of persons and property surrounding the exposed wall and was insupportable. Mr Taylor had before him a recommendation that the demolition simply should not proceed without ensuring the stability of the wall that would be exposed. In the absence of any clear evidence to the effect that Mr Taylor disagreed with the findings or conclusion of the survey report, the Temporary Lord Ordinary concluded that Mr Taylor reached his decision in the full knowledge that it would result in the defenders leaving a structurally unstable wall after the demolition. He had therefore failed to have regard to the risk to the safety of persons and property in the vicinity of the newly exposed wall. Mr Taylor had seemed to accept that a newly exposed former mutual wall would always require to be tied-in "at some stage", yet, according to the Temporary Lord Ordinary, he could not explain, other than by reference to a lack of power, how he had determined when that might be. The Temporary Lord Ordinary further concluded that Mr Taylor's decision in May 1996 was a final one, as there was no acceptable evidence that it was open to be revisited. In particular, no further formal inspections or reports were instructed thereafter. In the view of the Temporary Lord Ordinary there had been sufficient evidence of how the first defenders could have resolved the issue of the lack of authority to enter 237 to 239 North Street to negate any suggestion by Mr Taylor that he was powerless to resolve the problem posed by Mr Mallon's survey report. Mr Halliday had suggested one option in his memo of 17 April 1996. Moreover, Mr Lightbody had given unchallenged evidence that a raking shore could be attached to the exposed wall after the demolition of the flats above 229 to 235 North Street pending any further decisions being taken in relation to numbers 237 to 239. To go ahead with the demolition without taking or planning for any steps to stabilise the wall that would be exposed as a result was, in opinion of the Temporary Lord Ordinary, an unacceptable option. The Temporary Lord Ordinary found evidence of a clear on-going concern on the part of the contracts group about the lack of ties in the former mutual wall, coupled with an on-going refusal on the part of the decision makers to address the problem, in a memo of 25 July 1996 from Mr Gibb, head of contracts to Mr McPherson, head of operations. Contracts were recommending replacement of timber lintels with concrete lintels which incidentally could have assisted the wall's stability but they were obliged to accept the instruction from operations simply to brick up the openings left where rotted timber lintels were removed. It was apparent to the Temporary Lord Ordinary that Mr Gibb felt strongly about this matter in that he recorded that in the circumstances he was "... unable to guarantee the gable's stability." Such a statement reinforced the Temporary Lord Ordinary in her conclusion that the defenders knew that without carrying out gable stabilisation works there was a material risk of harm to people or property in the vicinity of the wall. In the absence of any satisfactory explanation, the Temporary Lord Ordinary concluded that this episode was illustrative of another failure on the part of the first defenders to take care for the safety of persons and property in the locality of the newly exposed wall. Mr Mallon did not change his view on the risk. He gave evidence that as the work progressed he had a concern about the wall's capacity to withstand wind loads, but, in the view of the Temporary Lord Ordinary, he was aware that expressing concerns had no impact on the decision makers and would not result in action being taken. He knew that it was proposed that some monitoring of the wall was to take place after the demolition, to check for movement, but no results were available when he left the site nor by the date of the collapse.

[20] The Temporary Lord Ordinary accepted Mr Lightbody's opinion that, had the works that he recommended (similar to those that Mr Mallon had recommended) been carried out, these would have precluded the collapse of the brickwork in question even in adverse weather conditions. Mr Lightbody described the works that should have taken place as "standard practice". Mr Mallon, who was regularly engaged in demolition work carried out by the Council, had recommended similar works without any comment that would suggest he thought his recommendations were unusual or innovative. As a result of the defenders' failures to follow those recommendations or find an alternative way of supporting the wall they had weakened, the building was unstable in that it was at material risk of collapse in reasonably foreseeable weather conditions. The Temporary Lord Ordinary accordingly concluded that the defenders knew, or ought to have known that the mutual division wall was left, on completion of the demolition works, lacking in inherent structural stability to the extent that there was a material risk that the chimney and part of the wall would be blown down, in high winds, onto the pursuers' property. Nevertheless they did nothing further.

[21] The Temporary Lord Ordinary rejected the contention that the defenders should be free of responsibility for the collapse because they had written to the pursuers and others to indicate that future maintenance of the structure would be their responsibility. There was no acceptable evidence that the pursuers or other relevant proprietors had been advised that the now exposed wall lacked stability because it was not tied-in or that the condition of the brickwork in the apex had not been inspected at all and could not be assumed to be any better so far as stability was concerned. It was implicit in Mr Mallon's evidence that he expected that the owners would be advised that further work to the wall would be required and that they should take professional advice on that matter. As there was no evidence of any such letter having been sent, it seemed to the Temporary Lord Ordinary that Mr Tahir, on behalf of the pursuers, and others were entitled to assume that the defenders had carried out the work organised and controlled by them in a manner that did not create a new structural instability carrying a material risk of collapse. The defenders had had information suggesting that the new gable lacked stability and they had failed to pass that information onto the relevant proprietors. In all the circumstances the Temporary Lord Ordinary did not see that the pursuers could be required to take responsibility for the situation created by the defenders.

Grounds of appeal
[22] Among the grounds of appeal was one challenging the decision of the Temporary Lord to repel the first defenders' plea of prescription. That ground was supported by junior counsel for the first defenders but it was expressly abandoned by senior counsel in the course of his submissions. The grounds of appeal that were insisted upon were as follows:

"1.1 The Temporary Lord Ordinary erred in fact and law in holding that the Defenders and Reclaimers were in breach of duty at common law.

1.2 In particular, the Temporary Lord Ordinary failed to adequately analyse the nature and extent of the duty or duties incumbent upon the Defenders and Reclaimers in the context of works carried out under a statutory duty and powers, namely under and in terms of section 13 of the Building (Scotland) Act 1959. Reference is made to X v Bedfordshire County Council [1995] 2 AC 633.

1.3 Further, the Temporary Lord Ordinary erred in fact and law insofar as she held (or the effect of her decision was to hold) that the duties at common law incumbent on the Defenders and Reclaimers went beyond the scope of their duties and powers under statute.

1.4 In that connection, the Temporary Lord Ordinary was not entitled to substitute her own opinion as to the condition of the wall and in particular, whether a danger existed sufficient to invoke the statutory duties and powers of the Defenders and Reclaimers, such a matter being within the discretion of the Defenders and Reclaimers.

1.5 The Temporary Lord Ordinary was not entitled to reject the evidence of Mr Taylor, a witness called by the Defenders and Reclaimers, nor to characterise his action(s) as wholly unreasonable. Her reasons for doing so are borne of an erroneous interpretation of the statutory duties and powers under which the officers of the Defenders and Reclaimers were working. It is accordingly open to the appellate court to consider his evidence afresh.

1.6 The Temporary Lord Ordinary failed to adequately analyse and assess the evidence of expert witnesses in the case and in particular, to explain why she preferred and accepted the opinion evidence of Messrs Bathgate and Lightbody. Reference is made to Dingley v Chief Constable of Strathclyde Police, 1998 SC 548 (2000 SC (HL) 77)."

Submissions
First defenders and reclaimers
[23] Junior counsel for the first defenders and reclaimers provided the court with very full written submissions which he indicated represented what he proposed to put to the court. Effectively, these written submissions superseded the revised note of argument which had previously been lodged on behalf of the first defenders. Senior counsel for the pursuers and respondents took no issue with the use of the written submissions, albeit that a copy had only been provided to him on the first day of the hearing, subject to them not being taken as read. Consistent with what had been said by senior counsel for the pursuers, junior counsel for the first defenders closely followed his written submissions when making his oral presentation to the court. We would therefore refer to that written submissions for the detail of what was said by junior counsel on behalf of the first defenders and provide only a very brief summary of these submissions here.

[24] The motion for the first defenders and reclaimers was that the reclaiming motion should be allowed, the interlocutor of the Temporary Lord Ordinary of 18 October 2011 recalled and the first defenders assoilzied.

[25] It was submitted that the Temporary Lord Ordinary had not been entitled to reject the evidence of Mr Taylor, nor to characterise his actions as wholly unreasonable. His evidence should have been accepted, particularly on the critical question as to whether the exposed former mutual division wall was dangerous. Mr Taylor had significant qualifications and experience in relation to the repair of tenemental property in the context of the operation of section 13 of the 1959 Act. His evidence was supported by other evidence in the case. The Temporary Lord Ordinary had been wrong to accept Mr Bathgate's opinion that the wall was dangerous. That opinion was inconsistent with the evidence of all the other witnesses in the case. The Temporary Lord Ordinary had failed to explain upon what basis she had preferred Mr Bathgate over these other witnesses. On a proper construction of the expert evidence the Temporary Lord Ordinary should not have concluded that the reason for the collapse was a combination of the movement of the chimney head due to wind forces and the poor condition of the supporting brickwork. She failed to explain why she had reached that conclusion rather than accept the more straightforward explanation that the chimney head had blown down in a very high wind (like many others on the night in question) taking a small part of the gable wall with it.

[26] Moreover, the Temporary Lord Ordinary had held that this was "a clear case of common law breach of duty as contended for by counsel for the pursuers". In so doing it was submitted that she had failed properly to apply the test for the existence of a common law duty of reasonable care incumbent upon a public authority exercising statutory powers which is set out in the speech of Lord Browne-Wilkinson in the leading cases of X v Bedfordshire County Council. She failed to delineate the scope and nature of the duty she had found to exist and to reason why it could be said that it had been breached in the instant case. In any event, even if the Temporary Lord Ordinary was correct to categorise the matter in that way, she had failed properly to consider the fact that the first defenders had no power to act. The reasoning offered by the Temporary Lord Ordinary culminated in her conclusion, which is to the effect that the statutory context could not be used by the first defenders to avoid liability. The logical conclusion of this finding is that the duty of care upon the first defenders imposed an obligation to take action beyond the scope empowered by section 13, and further disclosed that the Temporary Lord Ordinary had substituted her own opinion as to the state of the wall (insofar as she rejected Mr Taylor's evidence that there was no imminent danger), which she was not entitled to do.

[27] Senior counsel for the first defenders adopted his junior's submission. He accepted that the first defenders had a duty of reasonable care when carrying out works but that duty ceased on a property being "passed back" to its owner. It would be very onerous effectively to impose on a local authority all the duties of an owner and to do so might have an adverse effect on the willingness of local authorities to exercise statutory powers. The first defenders were concerned that they should not be required to bring buildings up to modern building standards. Senior counsel accepted that the Temporary Lord Ordinary had been entitled to hold that it was reasonably foreseeable that a wind would blow down the wall but the pursuers and other owners had known that more work was necessary. That said, the Temporary Lord Ordinary had been plainly wrong in rejecting the evidence of Mr Taylor to the effect that, as at completion of the demolition works, the wall was not dangerous. Senior counsel confirmed that it was the first defenders' position that because he was exercising a statutory discretion, Mr Taylor was effectively the sole and final arbiter of what should be done in the circumstances. He had concluded that the wall was not dangerous and therefore that the first defenders had no power to do anything further. That was his subjective opinion, formed in good faith. As an exercise of discretion it was not actionable at common law

Pursuers and respondents
[28] Junior counsel for the pursuers responded to the submissions for the first defenders in the order that they had been made. He began by submitting that, contrary to what had been submitted on behalf of the first defenders, the Temporary Lord Ordinary had been fully entitled to make the findings that she had, in particular her critical finding, at paragraph 87 of her opinion, that as a result of the first defenders' failures to follow the recommendations of their own officials or find an alternative way of supporting the wall they had weakened by carrying out the demolition works, the building at 237 to 239 North Street was unstable in that it was at material risk of collapse in reasonably foreseeable weather conditions. It was not the case, as had been suggested, that this conclusion was based on the evidence of Mr Bathgate alone. Rather, there was an overwhelming body of evidence to that effect. That included the evidence of Mr Lightbody who had particularly impressed the Temporary Lord Ordinary. As she was entitled to, the Temporary Lord Ordinary had had regard to Mr Lightbody's advantage of having inspected the wall. The Temporary Lord Ordinary also had had the benefit of hearing the witness and to have had the opportunity to have regard to his demeanour and way of giving evidence. As the Temporary Lord Ordinary had noted, all the professional witnesses had accepted that the exposed former wall would be less able to resist wind forces than was the case with the structure prior to the demolition works. Mr Mallon may not have been concerned about structural integrity per se but he had been concerned about the ability of the wall to withstand wind forces. The evidence of Messrs Lightbody, Simpson and Taylor was consistent with that. There was no dispute about that and accordingly the Temporary Lord Ordinary was justified in finding that there had been a material risk of collapse which was foreseeable. Mr Lightbody's evidence was that had the works he desiderated been carried out there would have been no collapse, to carry them out was standard practice and it was folly not to carry them out. This was all consistent with Mr Bathgate's evidence on wind loading, and to the effect that tying-in would have prevented the collapse, given the mechanism of how wind would act. Mr Bathgate had been unable to think of any circumstances in which one would leave such a wall in the condition this wall was left by the first defenders. The only expert to disagree with that was Mr McCulloch who had not seen the wall, had been instructed only a week before the proof, had stated that he was uncomfortable in giving a view on tying-in, and had conceded that he was not an expert on sulphate attack. It was entirely unsurprising that the Temporary Lord Ordinary had made the findings that she had. It was no doubt true that the court must test expert witnesses but here the court was simply not in the territory of being able to open up the evidence and consider it afresh: cf Clarke v Edinburgh & District Tramways Co 1919 SC (HL) 35 and Thomas v Thomas 1947 SC (HL) 45.

[29] Consideration of the documents founded on by pursuers disclosed the chronology and demonstrated that the first defenders were fixed with knowledge that once exposed the wall was liable to collapse in foreseeably high winds. Reference was made to Mr Halliday's memo to Mr Knowlson of 17 April 1996, Mr Halliday's memo to Mr Mallon of 23 April 1996 with its instruction to carry out disruptive survey to include the roof space in order to determine the condition of apex brickwork, Mr Mallon's survey report of April 1996, the tender by CMI in £89,964 dated 20 May 1996, the memo from Mr Mallon to Mr Knowlson dated 22 May 1996 confirming Mr Taylor's decision to delete the provision for tying-in works from the contract, the letter of 3 June 1996 from the Planning sub-committee on Building Standards which had given authority to go ahead with a contract to a value of £89,964, the supervising officer's instruction to CMI to delete the tying-in work dated 19 June 1996, and Mr Gibb's memos to Mr McPherson on the subject of lintels dated 25 and 26 July 1996 referring to the inadequacy of ties.

[30] Accordingly, it was submitted on behalf of the pursuers that there could be no criticism of the Temporary Lord Ordinary's findings. She had been entirely alive to the distinction between an exercise of discretion by the first defenders in terms of section 13 and the decisions made by them in planning operationally how the work should be carried out.

[31] The Temporary Lord Ordinary had been entitled to reject Mr Taylor's evidence and the cogency of his purported reason for deleting the provision for tying-in. The first defenders knew or ought to have known of the danger presented by the state of the wall. They did not stabilise it. Therefore the issue for the court was whether they were entitled to leave wall unsupported. The Temporary Lord Ordinary had given her reasons for rejecting Mr Taylor's evidence. That was a decision on fact which could only be reconsidered on appeal by reference to the considerations set out in Clarke and Thomas.

[32] Similarly it was not open to this court to come to a view on the knowledge of the pursuers on the basis of consideration of correspondence when the Temporary Lord Ordinary had made the findings in fact recorded at paragraph 88 of her opinion that the defenders had information tending to suggest that the new gable lacked stability and they had failed to pass that information on to the relevant proprietors.

[33] Turning to the question of duty of care, it was the pursuers' position that the first defenders having exercised the statutory discretion, what followed was a need to act in an operational sense. Analysis of the consequential duties was dependent on the usual rules derived from Caparo Industries plc v Dickman [1990] 2 AC 605 at 617C to 618D, it being borne in mind that it was the first defenders who had created the danger. All three aspects of the tri-partite test were satisfied in the present case. It was instructive to consider what Lord Jauncey had said in X v Bedfordshire County Council supra at 729E-H. The first defenders here were in exactly the same position as the owners would have been in when doing the same work. The pursuers had no difficulty in accepting the soundness of the decisions in City of Glasgow District Council v Bala Investments Ltd (unreported, 4 October 1991) and Wilson v McCaffrey 1989 SCLR 250, which had been relied on by the first defenders where what was under consideration had not got to the stage of the carrying out of operations. However, while it was not disputed that when a public authority is exercising a statutory discretion that will not generally be actionable, the position may be different when the public authority itself creates a new danger: Harris v Evans [1998] 1 WLR 1285 and Capital and Counties plc v Hampshire County Council [1997] QB 1004. Equally, it was accepted that regard could be had to the nature and scope of the statutory duty when considering what duties arose at common law. Here the purpose of the provisions of section 13 of the 1959 Act was to protect persons and property from dangers due to the condition of buildings.

[34] Senior counsel for the pursuers adopted what had been said by his junior. He had very little to add beyond emphasising two matters: first, that the pursuers' case was limited to one of negligence on the part of the first defenders at the stage of planning the operational details of the demolition work that they had decided to carry out; second, that this was a court of appeal not a court of review and therefore the first defenders were not entitled to do what they had attempted to do which was to go behind the findings made by the Temporary Lord Ordinary and looking at the evidence without explaining what failures on the part of the Temporary Lord Ordinary justified this.

Discussion
Duty of care
[35] Insofar as insisted upon, the first defenders and reclaimers put forward grounds of appeal that are inter-related and which demonstrate a radical difference in approach to that which was advanced by the pursuers and which found favour with the Temporary Lord Ordinary.

[36] The first defenders' position was that their powers and duties effectively were circumscribed by the terms of section 13 of 1959 Act. It was in terms of section 13 that they were acting when they demolished part of the building at 229 to 235 North Street and it would be in terms of section 13 that they would have to act were they to do any work on the building at 237 to 239 North Street. Imposition of a duty to exercise section 13 powers depended on a judgement, which it was for the local authority to make, that a building was "dangerous to persons inhabiting or frequenting it or adjacent buildings or places or to the public generally". The relevant judgement was discretionary in nature. If a local authority does not judge a building to be "dangerous" in any of these respects and therefore does not exercise section 13 powers, that is not actionable simply because the judgement was made in error: City of Glasgow District Council v Bala Investments Ltd, supra and Wilson v McCaffrey supra following Bonthorne v Secretary of State for Scotland 1987 SLT 34 (see also X v Bedfordshire County Council supra at 736A, 738G). In exercising judgement no duty of care is owed to, for example, neighbouring proprietors. The Temporary Lord Ordinary had failed adequately to analyse the nature and extent of the duty or duties incumbent upon first defenders in the context of works carried out under section 13. Counsel for the first defenders relied on what had been said by Lord Browne-Wilkinson in his speech, with which the other members of the judicial committee agreed, in X v Bedfordshire County Council.

[37] The first defenders' approach places a sharp focus on Mr Taylor, their Director of Building Control and the individual in whom the section 13 discretion was vested. Senior counsel epitomised that when he confirmed that it was the first defenders' position that because Mr Taylor was exercising a statutory discretion, he was effectively the sole and final arbiter of what should be done in the circumstances. It follows that to succeed in their reclaiming motion the first defenders required to displace the Temporary Lord Ordinary's finding that in planning, as well as in executing, the demolition work at 229 to 235 North Street, the first defenders owed a duty of care to neighbouring proprietors, including the pursuers and, further, sufficiently to rehabilitate Mr Taylor's testimony so that it demonstrated a coherent account of a reasonable exercise of discretion. In our opinion the first defenders must be taken to have failed in both respects and therefore the reclaiming motion falls to be refused.

[38] The first defenders began by a review of the evidence with the object of finding support for Mr Taylor's assessment that the former mutual division wall did not present an immediate danger following completion of the demolition works. We shall return to this aspect of the reclaiming motion but it is convenient first to consider the first defenders' submission that the Temporary Lord Ordinary was in some way in error in concluding that this was a clear case of common law breach of duty as contended for by the pursuers.

[39] Acts and omissions which, in some way or another, can be characterised as the discharge by a public authority of a statutory duty may or may not be actionable in damages at the instance of persons harmed by what the public authority has done or not done. In his general approach to the consideration of the various cases which were before the judicial committee of the House of Lords in X v Bedfordshire County Council, Lord Browne-Wilkinson began (supra at 730F) by stating the issue which all the cases raised as being:

"... whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority's performance or non-performance of that function has a right of action in damages against the authority".

He went on:

"It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review."

Then, at 730H, in a passage cited by junior counsel for the first defenders, Lord Browne-Wilkinson classified such private law claims for damages against a public authority arising from the authority's discharge of statutory duty into four categories as follows:

"(A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful."

[40] What is of interest in the present case is Lord Browne-Wilkinson's category (C). That is where the Temporary Lord Ordinary understood the pursuers' claim against the first defenders to fit. She distinguished that claim from a complaint that a decision to serve or not to serve a section 13 notice had been made carelessly. Such a claim relating to the decision to serve a section 13 notice would have fallen into Lord Browne-Wilkinson's category (B) and, as was held by Lord Kirkwood in Wilson v McCaffrey, would not have given rise to a ground of action. The Temporary Lord Ordinary makes her position quite plain at paragraph 89 of her opinion:

"In my view it is important to distinguish between the decision made by the Defenders to serve the section 13 notice and their subsequent actions in failing to have regard for the safety of persons and property in the vicinity of the work being carried out. The decision to serve the notice and carry out the work necessarily involves an element of discretion and there is no question of that being challenged here. Once the defenders had made the decision to demolish part of the tenement, a relationship was created between them and at least the neighbouring proprietors that gave rise to a common law duty of care. They were squarely within category (C) of Lord Browne-Wilkinson's four categories in X v Bedfordshire County Council."

There is nothing in that which is other than consistent with what was said by Lord Browne-Wilkinson in X. At 735F he says this:

"It is clear that a common law duty of care may arise in the performance of statutory functions. But a broad distinction has to be drawn between: (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion; (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice.

An example of (a) in the educational field would be a decision whether or not to exercise a statutory discretion to close a school, being a decision which necessarily involves the exercise of a discretion. An example of (b) would be the actual running of a school pursuant to the statutory duties. In such latter case a common law duty to take reasonable care for the physical safety of the pupils will arise. The fact that the school is being run pursuant to a statutory duty is not necessarily incompatible with a common law duty of care arising from the proximate relationship between a school and the pupils it has agreed to accept. The distinction is between (a) taking care in exercising a statutory discretion whether or not to do an act and (b) having decided to do that act, taking care in the manner in which you do it."

And, at 739A, this:

"If the plaintiff's complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (e.g. the running of a school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles i.e. those laid down in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 , 617-618. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care? See Rowling v. Takaro Properties Ltd. [1988] A.C. 473 ; Hill v. Chief Constable of West Yorkshire [1989] A.C. 53 ."

That is not to say that the circumstance that the public authority is discharging a specific statutory duty is irrelevant. As Lord Browne-Wilkinson continues at 739B:

"However the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. The position is directly analogous to that in which a tortious duty of care owed by A to C can arise out of the performance by A of a contract between A and B. In Henderson v. Merrett Syndicates Ltd. [1995] 2 A.C. 145 your Lordships held that A (the managing agent) who had contracted with B (the members' agent) to render certain services for C (the Names) came under a duty of care to C in the performance of those services. It is clear that any tortious duty of care owed to C in those circumstances could not be inconsistent with the duty owed in contract by A to B. Similarly, in my judgment a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties."

[41] Lord Jauncey, like the other members of the judicial committee agreed with Lord Browne-Wilkinson. He felt able to put the matter rather more succinctly, supra at 729E to H:

"Where a statute empowers or ordains the doing of an act which, if done with due care, will cause no harm to a third party but which, if done carelessly will be likely to cause harm, and the circumstances also satisfy the other two requirements in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, namely that the relationship between plaintiff and defendant is sufficiently proximate and that it would be just and reasonable to impose a duty of care, an action will lie at common law. But it will lie simply because careless performance of the act amounts to common law negligence and not because the act is performed under statutory authority. Thus the owners of a National Health Service Hospital owe precisely the same duty of care to their patients as do the owners of a private hospital and they owe it because of the common law of negligence and not because they happen to be operating under statutory provisions. Conversely an act which, if performed in a particular manner by a private individual, would give rise to no cause of action will no more be actionable if it happens to be performed in the same way in exercise of a statutory power or duty, breach of which does not confer a private law right of action, even if such performance is careless."

[42] In our opinion the Temporary Lord Ordinary was fully entitled to find that once the first defenders had made the decision to demolish part of the tenement building at 229 to 235 North Street, a relationship was created between them and at least the immediately neighbouring proprietors that gave rise to a common law duty of care to take reasonable care to see to it that the demolition works were planned, executed and completed in a manner which did not cause a danger of damages to the pursuers' premises and, in particular, that they were under a duty to take reasonable care to see that the newly exposed gable wall and chimney head of the demolished building and the neighbouring building were not left in a state in which they were liable to collapse. It may be, as was submitted on behalf the first defenders, that the duties which the Temporary Lord Ordinary found to be incumbent upon them at common law went beyond the scope of their duties under statute. That is because, while in the event of it appearing to a local authority that a building is dangerous it shall serve a notice on the proprietors requiring operations such as are necessary in the opinion of the local authority to be carried out to remove the danger, in the event that the proprietors do not comply the local authority, may (but not must) make an order requiring compliance and then execute the operations which the proprietors have failed to execute. That is not to say that the duty which the Temporary Lord Ordinary found to be incumbent upon the first defenders is in any way inconsistent with the statutory duty. The purpose of section 13 is to allow a local authority to take direct action to obviate dangers posed by dilapidated or ill-constructed buildings with a view to preventing harm to persons and property. That is the essence of the duty found by the Temporary Lord Ordinary. However, more critically, it is to be borne in mind that the claim is not one of breach of statutory duty nor of a failure of duty of care in the manner in which the first defenders exercised a statutory discretion (cf X v Bedfordshire v County Council supra at 735F) but, rather, a claim where a duty is alleged to arise from the manner in which the statutory duty had been implemented in practice. What the pursuers found on here and what the Temporary Lord Ordinary held that they were entitled to found on was a purely operational duty arising after the discretionary decision was made, that being a duty not to create a reasonably foreseeable risk of harm by reason of the way in which they carried out the works. It is true that in terms of section 13 (1)(c) it is the local authority that is to judge what is necessary to remove the danger, as it is the local authority that is to judge whether a section 13 notice or further section 13 notice is to be served. That, however, did not disable the Temporary Lord Ordinary from forming her own opinion as to the condition of the wall and, at least in the facts of this case, to substitute that opinion for what Mr Taylor had to say about it.

[43] What was essentially uncontroversial here was that what the first defenders had done in carrying out a partial demolition of the building at 229 to 235 North Street was to remove lateral support for the former mutual dividing wall and to expose it to structural forces including wind forces which it had never been intended to withstand. The Temporary Lord Ordinary was therefore entitled to find, as she did, that the first defenders had created dangers which were additional to and different from such danger as the first defenders had assessed had been presented by the three upper storeys which they had demolished. What required to be done in these circumstances in order to meet the requirements of reasonable care was a matter of fact for the Temporary Lord Ordinary. It was not something within the exclusive province of the first defenders, as arbiter of "imminent" danger, as counsel for the first defenders suggested. The Temporary Lord Ordinary was fully entitled to find that the first defenders had failed to exercise the requisite degree of care.

[44] A feature of the first defenders' position at proof and before this court was that in taking action to obviate or reduce the risk of collapse presented by the former mutual dividing wall they were limited to the powers conferred on them following an order made in terms of section 13(2) and that that required a decision that a building presented an imminent danger. We were not persuaded that in order to take the measures desiderated by the pursuers' expert, or indeed the first defenders' own officials, it was necessary to invoke section 13 powers, as Mr Taylor asserted in evidence. On the making of an order under section 13 in respect of the building at 229 to 235 North Street the first defenders were able to carry out all such works as the proprietors of that building might have done and in order to do so might exercise all the rights of these proprietors. The proprietors were owners of the mutual wall up to its medium filum and had a common interest in the other side of the wall. While the extent to which common interest permits intrusion on another's property may be fact sensitive, the reality in the present case, to judge by the photographs which were taken by Mr Lightbody shortly after the collapse, was that the upper storeys of 237 to 239 North Street were derelict and therefore tying-in works would not have caused any practical disruption to which the proprietors of 237 to 239 North Street might reasonably object (counsel for the first defenders advised that the upper storeys at 237 to 239 were in fact demolished, as we understood it, not long after the collapse). That of course highlights the simple and obvious expedient of seeking the consent of the 237 to 239 North Street proprietors to work which could only be to the benefit of their property. It was accepted that there had been no evidence of any attempt to obtain such consent, although it was, rather faintly, suggested that there might have been difficulty in identifying and contacting those who were the owners of the upper storeys at 237 to 239. While that might not be inconsistent with the appearance of the upper flats as shown in Mr Lightbody's photographs it serves to reinforce our view that the first defenders would have been entitled, by virtue of their being vested with the rights of the 229 to 235 proprietors, to tie-in the mutual wall to the effectively abandoned property at 237 to 239. We also note, although this did not form part of the pursuers' case, that the Temporary Lord Ordinary heard in evidence that the wall could have been secured from the south by the erection of a raking shore.

[45] In our opinion, the findings by the Temporary Lord Ordinary that the first defenders were under a duty of care owed to the pursuers in planning and execution of the works done by virtue of the section 13 notice and that they were in breach of that duty disclose no error whatsoever. This aspect of the reclaiming motion therefore fails.

The Temporary Lord Ordinary's conclusions on fact
[46] The grounds of appeal maintain that the Temporary Lord Ordinary was not entitled to reject the evidence of Mr Taylor and therefore it was open for this court to consider his evidence afresh. They further maintain that the Temporary Lord Ordinary had failed adequately to analyse and assess the evidence of the expert witnesses and to explain why she preferred and accepted the evidence of Mr Bathgate and Mr Lightbody. In our opinion, in submissions which we have summarised above, junior counsel for the pursuers was able to demonstrate that the Temporary Lord Ordinary had been fully entitled to reject the evidence of Mr Taylor insofar as that evidence might suggest that by failing to tie-in the former mutual division wall the first defenders' works had not created a reasonably foreseeable risk that the wall would collapse. Equally, we are satisfied that the Temporary Lord Ordinary fully explained, by reference to the whole evidence in the case and the particular advantages and disadvantages enjoyed by the respective witnesses why she preferred the evidence of Mr Lightbody and Mr Bathgate over that of Mr McCulloch and, to the extent it was relevant, Mr Taylor.

[47] There is, however, a logically anterior objection to this aspect of the argument put forward by the first defenders and reclaimers. It is the function of a court of first instance to find what are the facts. These findings are not sacrosanct but, as senior counsel for the pursuers correctly reminded us, this is a court of appeal, not a court of review, and a court of appeal will only reverse a court of first instance on findings of fact where certain well-established criteria are met. This area of the law was recently looked at by the Inner House in McGraddie v McGraddie [2012] CSIH 23 but the leading authorities are of long standing: Clarke v Edinburgh and District Tramways Co supra and Thomas v Thomas supra. It is unnecessary to quote the familiar passages from the speeches of Lord Shaw of Dunfermline and Lord Thankerton in the respective cases because we did not understand it to be disputed by counsel for the first defenders, when faced up with it, that before an appeal court can enter into the evidence with a view to considering it afresh, it must be satisfied that the court of first instance was "plainly wrong" in the conclusions it reached on its consideration of the evidence. Here the first defenders did not even embark on the exercise of trying to show that the Temporary Lord Ordinary had been plainly wrong in her assessment of the evidence that she had heard or had otherwise made an error of the sort identified in Clarke and Thomas as permitting an appeal court to interfere with her findings.

Decision
[48] We shall refuse the reclaiming motion. We shall reserve all questions of expenses.